Citation Nr: 9812532
Decision Date: 04/22/98 Archive Date: 05/08/98
DOCKET NO. 96-47 211 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUES
1. Entitlement to service connection for an acquired
psychiatric disorder, to include post-traumatic stress
disorder (PTSD).
2. Entitlement to service connection for residuals of
frostbite of the feet and hands.
REPRESENTATION
Appellant represented by: Jerry Anderson, Attorney
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael Martin, Counsel
INTRODUCTION
The veteran had active service from January 1951 to January
1953.
This matter came before the Board of Veterans’ Appeals
(Board) on appeal from a decision of July 1995 by the
Department of Veterans Affairs (VA) Louisville, Kentucky,
Regional Office (RO) which denied the benefits sought on
appeal.
The Board notes that the veteran’s claims were previously
denied by the RO in decisions of July 1983 and June 1994.
The veteran did not perfect an appeal of either of those
decisions and they became final. See 38 U.S.C.A. § 7105
(West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1997). However,
service medical records were not available at the time of
each prior denial. As substitute service medical records
from the Surgeon General’s Office have now been associated
with the record, the Board will, as did the RO, review each
of the claims on a de novo basis.
REMAND
The veteran contends that the RO made a mistake by denying
his claims for service connection for an acquired psychiatric
disorder, to include PTSD, and for residuals of frostbite.
He asserts that he incurred these disabilities as a result of
the severe conditions that he experienced while serving in
combat in Korea, including a period of time when he asserts
that he was held as a prisoner of war.
After reviewing the veteran’s claims file, the Board
concludes that additional development of evidence is required
for proper consideration of the veteran’s claims. In this
regard, the Board notes that the veteran testified during a
hearing held in March 1998 that he had received treatment at
VA facilities for medical problems affecting his legs and
feet which he believed were attributable to frostbite. The
records from such treatment, however, have not been presented
or secured. Those records may be useful in evaluating
whether the veteran currently has any residuals of frostbite.
The Board also finds that additional development is warranted
with respect to the issue of whether the veteran was a
prisoner of war or was exposed to other stressors in service.
The veteran’s DD 214 shows that was in service from January
1951 to January 1953, including 9 months and 18 days of
foreign and/or sea service. His awards and decorations
included the Korean Service Medal with one service star, and
the United Nationals Service Medal. The civilian equivalent
of his military occupational specifically was reported as
being a radar equipment foreman. His most significant duty
assignment was “BTRY A 78th AAA Gun Bn.” It was noted that
he had not received any wounds as a result of action with
enemy forces.
The veteran has presented details of his claimed stressors at
various times. In his original claim form dated in April
1983, the veteran indicated that he had been a prisoner of
war in Korea in late 1952. In a claim for compensation dated
in June 1993, the veteran indicated that he had been confined
as a prisoner of war beginning about October 1951 and that he
had been released on an unknown date. During a September
1993 mental examination conducted by the VA, the veteran
reported that he lost his teeth while being tortured as a
POW.
In a statement in support of claim dated in May 1994, the
veteran stated that he arrived in Korea at Inchon around
January 1951. The Board notes that this date may be mistaken
as the veteran did not enter service until January 30, 1951.
The veteran further stated that he was assigned to the 78th
Gun Battalion, which was attached to the 1st Marine
Division, and that he was assigned to “Dog Co.” He stated
that he was equipped with a bazooka and a pistol and they
pursued the enemy to the 38th parallel. He reported that
they engaged in an all out conflict lasting about three days,
and that after the battle only 17 soldiers were left out of a
company of 174. He recounted that he was wounded many times
and received 5 Purple Hearts. The veteran specified that
another soldier, Bob Barnett, Jr., was killed in this battle.
The veteran said that he was taken prisoner and transported
to North Korea, and was held for about 18 months. He said
that while he was a prisoner his captors pulled his teeth
with pliers, put bamboo shoots under his fingernails, and did
many other atrocities. He also said that when he was
released, he was walked across the Honn River where he saw
many dead American and Korean soldiers. The veteran
subsequently submitted a witness statement dated in January
1995 from another servicemen which is to the effect that the
serviceman witnessed the veteran being returned to U. S.
control in June 1952. In his substantive appeal statement of
October 1996, the veteran indicated that his dates of
confinement had been from March 1951 to June 1952. He
indicated that after being released he was taken to a
hospital ship at Inchon and was transported back to the
United States via Japan.
The RO made several efforts to verify the veteran’s claim
that he was held as a POW by contacting the National
Personnel Records Center (NPRC). The NPRC indicated in
December 1993 that available records failed to reflect that
the veteran was a prisoner of war, and that, in order to
search further, the dates of capture and return to military
control and assignments at those times should be provided.
Similarly, the NPRC indicated in June 1995 that there were no
service medical records on file and there was no record of
the veteran having been a prisoner of war. It was stated,
however, that a further search could be performed if
additional records such as the organization assigned to at
time of treatment, the specific treatment date, and the
location of such treatment were provided. Subsequently, in
January 1997, the RO submitted another request to the NPRC
indicating the unit to which the veteran was assigned and
requesting a check of morning reports. The RO specified that
the pertinent dates were between March 1952 and January 1953.
The Board notes that these dates are different than the dates
specified by the veteran. A memo in the file dated in
November 1996 shows, in essence, that when undertaking this
development the RO assumed that the dates provided by the
veteran one year off. Subsequently, in March 1997, the NPRC
responded simply by stating that they had no POW dates.
The Board notes that the NPRC has never been provided a
complete summary of the account that has been provided by the
veteran. Furthermore, the RO did not attempt to contact the
United States Armed Services Center for Research of Unit
Records (hereafter referred to as the Unit Records Center)
(formerly known as the U.S. Army and Joint Services
Environmental Support Group or ESG) for the purpose of
attempting to verify the veteran’s claimed stressors or
claimed period of POW status. Accordingly, to ensure that
the veteran has been afforded every opportunity to develop
the facts pertinent to the claim, the case is REMANDED to the
RO for the following development:
1. The RO should obtain information from
the veteran as to the VA facilities at
which he has received treatment, and then
request all medical records pertaining to
the veteran from those facilities. All
such records obtained should be
associated with the claims file.
2. The RO should then review the claims
file and prepare a summary of all the
claimed stressors. This summary and a
copy of the veteran’s DD Form 214 should
be sent to NPRC and the Unit Records
Center. They should be requested to
provide any additional information that
might corroborate the veteran’s alleged
stressors, including the deaths of member
of his unit and his report of being held
as a POW. Also, the Unit Records Center
should be requested to furnish the
morning reports and a unit history for
the unit the veteran was assigned to
while in Korea and to indicate whether
his unit was engaged in combat with the
enemy at any time that the veteran was a
member.
3. Following the receipt of responses
from the NPRC and the Unit Records
Center, and after undertaking any
additional development suggested by
either organization, the RO should
prepare a report detailing the nature of
any combat action and combat related
stressor(s) and/or verified noncombat-
related stressors which it has determined
are established by the record. This
report is then to be added to the claims
file. If no combat action or noncombat-
related stressor has been verified, the
RO should so state in its report and
should skip paragraphs 4 and 5 and
proceed with paragraph 6.
4. Then, the RO should schedule the
veteran for a VA psychiatric examination
in order to determine the nature and
extent of any current psychiatric
disorders. Prior to this examination,
the RO should provide the examiner with
the veteran’s claims file, including a
copy of this REMAND, and the examiner
should review the claims file prior to
and at all times relevant to the
examination. The examiner must consider
the Fourth Edition of the American
Psychiatric Association's Diagnostic and
Statistical Manual of Mental Disorders
(DSM-IV), which recommends the use of a
multi-axial diagnosis and sets forth the
criteria for diagnosing psychiatric
disorders, including PTSD. All indicated
studies, tests, and evaluations deemed
necessary should be performed; these
should include psychological testing,
with PTSD sub scales. The RO should
provide to the examiner the summary of
verified combat action/stressors
described above, and the examiner must be
instructed that only these events may be
considered for the purpose of determining
whether exposure to an in-service
stressor has resulted in the current
psychiatric symptoms. The examiner must
also determine whether the diagnostic
criteria to support the diagnosis of PTSD
have been satisfied. If the PTSD
diagnosis is deemed appropriate, the
examiner should explain how the
diagnostic criteria of the DSM-IV are
met, to include identification of the
specific stressor(s) underlying the
diagnosis, and comment upon the link
between the current symptomatology and
one or more of the in-service stressors
found to be established by the RO. If
more than one diagnosis is rendered, the
examiner should distinguish, to the
extent possible, symptomatology
attributable to each; assign a Global
Assessment of Functioning Scale score for
each psychiatric disorder diagnosed; and
explain what each score represents. The
report of the examination should include
the complete rationale for all opinions
expressed. The examination report should
be typed.
5. The RO should then review this
examination report. If the report is not
in complete compliance with the
instructions provided above, it should be
returned to the examiner for completion.
6. Then, when the actions outlined in
this REMAND have been completed, the RO
should readjudicate the veteran’s claim
for service connection for PTSD in light
of all pertinent evidence and all
applicable laws, regulations, and case
law (including Cohen v. Brown, 10 Vet.
App. 128 (1997)). If the determination
remains adverse to the veteran, he and
his representative should be furnished
with a supplemental statement of the case
and be given the appropriate opportunity
to respond before the case is returned to
the Board.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to any ultimate
outcome warranted in this case. The appellant need take no
action unless otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
JACQUELINE E. MONROE
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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